The divorced wife of a Spanish diplomat stationed in Malta is claiming that her former husband is “abusively” invoking diplomatic immunity to prevent her from seeing their two sons. 

In a judicial protest, the woman is alleging that the father of two was effectively side-stepping the orders of a family court, which grants the mother weekly supervised access to the two boys. 

Diplomatic immunity gives members of the diplomatic corps legal immunity from prosecution within the countries in which they are hosted. Originally a form of customary law, it was codified by the 1961 Vienna Convention on Diplomatic Relations, which Malta has ratified.

In her judicial protest, the woman stated that she and her husband got married in 2006, had two children and were now divorced. 

The couple was granted joint care and custody of their two sons, now aged 11 and 13, with a court declaring that the minors were to live with the father.

Following his posting in Malta, the mother also relocated to the island, to be close to the boys. Following an application by the father before the Family Court, the mother was granted twice weekly supervised access visits, of two hours each.

One such visit was scheduled last Thursday, but shortly before the appointed time, the mother received an email from a social worker at the Child Protection Services agency informing her about a change in plans.

The father had informed them that he “did not intend to participate” in any such supervised visits “until the matter of diplomatic immunity is settled in court.”

Such move was “completely abusive” since the mother’s relationship with her minor sons had nothing to do with her former husband’s official functions, argued the woman’s lawyer, Robert Thake. 

Besides, after first filing an application before the Family Court, the father was now citing diplomatic immunity to avoid adhering to court orders.

By invoking that concept of international relations “for his own private and personal benefit,” the father was posing a “serious and irremediable prejudice” to his former spouse, breaching her rights to a fair trial and family life, said the lawyer. 

The lawyer argued that the Vienna Convention’s spirit and scope was being breached in this case.

Moreover, the woman’s lawyer alleged that the Spanish embassy and Foreign Affairs Ministry had both pressured Child Protection Services to send the 11-year old back to live with the father, while the child was staying with the mother. The judicial protest states that the director of child protection services testified to that effect last month. 

The elder son had also been taken out of the country without her knowledge or consent, the woman said. 

In light of such circumstances, her lawyer called upon the protested parties to take all necessary steps to protect the mother’s relationship with her children without delay, stressing that diplomatic immunity alone could not absolve local authorities of their obligations under the European Convention on Human Rights.

The mother also reserved her right to seek further legal remedies to safeguard her fundamental human rights. 

The judicial protest was signed by lawyer Robert Thake and filed against the Ministry for Social Justice and Solidarity, the Family and Children’s Rights, the Ministry for Foreign and European Affairs, the Foundation for Social Welfare Services, the State Advocate, the Spanish Ambassador and the father, who was posted at the embassy.